Baltimore State’s Attorney Marilyn Mosby violated a court order last month when she commented on Keith Davis Jr.’s controversial criminal cases on social media, a judge ruled Friday, sentencing the lead prosecutor of the city for contempt of court.
Circuit Judge John Nugent fined Mosby $1,500 but said she could avoid those charges if she complied with a more restrictive “gag order” for 90 days. Rather than refrain from comments intended to sway public opinion, as required by Nugent’s first order, Mosby would not be allowed to say anything about the case under the judge’s proposed mandate. .
Mosby, a Democrat in her second term as state’s attorney, did not take the witness stand in Friday’s hearing. She observed the arguments of the public.
Nugent issued the original gag order on June 7 as public discourse on the case neared a crescendo with Davis’ fifth murder trial looming and Mosby seeking a third term.
The order, sought by Mosby prosecutors, prohibited attorneys and legal staff from making comments outside of court “for the purpose of influencing public opinion on the merits of cases.”
Davis has been charged with murder after a fatal shooting in 2015 and attempted murder in 2021 following an alleged prison fight. He was tried four times for the homicide, with his supporters decrying the repeated prosecutions and becoming a thorn in Mosby’s side. She has sworn to secure a conviction for Kevin Jones, the Pimlico Racetrack security guard whom her office says Davis killed.
“I am trying, by issuing the gag order, to ensure a fair trial for everyone,” Nugent said on Friday.
Davis’ attorneys charged Mosby with violating the order about an hour after it went into effect. That morning, the two-term prosecutor went to the Baltimore the program “Midday” of the public radio WYPR-FM and answered a question from host Tom Hall about his office’s repeated lawsuits against Davis. The defense asked Nugent to dismiss Davis’ charges and hold Mosby in contempt.
Although he said “clearly, the gag order was immediately effective and applied unequivocally to State’s Attorney Mosby,” Nugent said he was giving Mosby the “benefit of the doubt” for speaking out. of the case on the radio because he had not yet written the order at the time she spoke, did not express his decision in court.
But about two weeks after Mosby appeared on the radio, the defense drew attention to a comment Mosby made on social media and accused him of again violating the gag order. Popular Instagram account @murder_ink_bmore posted a video on July 3 about Davis’ case. One person commented on the post that Mosby lost his vote due to the repeated lawsuits against Davis.
With the Democratic primary set for July 19, Mosby replied that the person “shouldn’t believe everything you read.”
Nugent said he viewed Mosby’s social media post differently than her radio appearance, as she must have had a chance to see the order. He said he believed it was intended to influence public opinion on the case.
“I can’t see the social media comments on Instagram as anything other than a willful violation of this court’s gag order,” he said.
Erin Murphy, chief counsel for the state’s attorney’s office, argued in court on Mosby’s behalf. Although she admitted that Mosby’s response on social media was “reckless”, Murphy said the comment was about her election rather than Davis’ case.
“Why would you go to this website with a gag order in place and the contempt issue pending?” Nugent said, noting that Davis’ attorneys had previously charged Mosby with violating his order.
Public defender Deborah Katz Levi described the comments by Mosby, whom she described as the chief law enforcement authority in the city, as amounting to an attack on Davis’ presumption of innocence.
She urged Nugent to either dismiss the cases or issue one or more of his proposed penalties: a $10,000 fine held in escrow until the cases are concluded, a public apology from Mosby made “on the courthouse steps with the press around” or additional questions during jury selection about whether potential jurors had heard Mosby’s remarks.
“There has been a clear violation of this court’s order…there must be a penalty,” Levi said.
Davis’ wife Kelly applauded Nugent’s decision after court alongside several supporters and activists who consistently called on Mosby to “release Keith Davis Jr.”
“I’m glad a judge today ruled that his presumption of innocence is more important than an elected official or them believing themselves to be above the law,” Kelly Davis said.
Although Nugent did not dismiss any of Davis’ ongoing cases, there were already questions about what would happen to them under future state attorney Ivan Bates.
Mosby finished in last place in the primary, with Bates, a defense attorney, winning by a comfortable margin. No one is expected to challenge him in the November ballot. At the campaign trial, he vowed to drop Davis’ charges. A fifth murder trial for Davis was recently scheduled for May.
Back and forth over Mosby’s comments have fueled a contentious legal saga that spans seven years.
During this period, Mosby had heated exchanges with Davis supporters and rebuffed calls to drop his charges.
Comments by Mosby and some of his deputies served as the basis for the defense’s argument that Davis is being prosecuted again and again because of Mosby’s animosity for him. They asked that Davis’ charges be dismissed.
Mosby’s prosecutors have refuted those allegations.
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But, in a rare court ruling, Nugent found the defense demonstrated a “presumption of revenge” underpinned the Davis attempted murder case. He stopped short of dismissing the case, but expressed concerns about the timing of the charges: Mosby’s office filed them about a year after an alleged jail fight and less than two weeks after Davis won a fifth murder trial.
Nugent’s order requires prosecutors to turn over potential evidence of animosity to the defense. It is unclear when this legal issue will be brought to court.
Davis’ four murder trials have gone as follows: His first, in 2017, resulted in a hung jury. After his second trial that same year ended in a conviction, a judge dismissed it, finding that prosecutors had withheld information from the defense. A deadlocked jury in their third murder trial. His fourth, in 2019, resulted in a guilty verdict which was later overturned.
Under Mosby, prosecutors filed murder charges against Davis a week after he was largely exonerated in an attempted armed robbery case stemming from an incident later the same day that Jones was kill.
Suspecting Davis of robbing an unlicensed taxi driver and alleging he was armed, police chased him into a car garage and fired 32 rounds at him, hitting him three times. Police say they found a handgun in the garage after the first shooting by officers since Freddie Gray died in police custody.
At a trial for armed robbery, a jury acquitted Davis of all charges except being a prohibited person in possession of a firearm. Police and prosecutors say the handgun was used to shoot Jones, although testimony from gun examiners who claimed the ballistics matched has come under criticism.
Along with Friday’s finding that Mosby violated a circuit court order, she faces federal charges of perjury and mortgage fraud. She was charged in January and is due to stand trial in September.